Choquette v. Williams
MEMORANDUM DECISION AND ORDER DENYING 14 Motion to Compel Recording; and rendering the 19 Motion to Compel Deposition as MOOT. Signed by Magistrate Judge Paul M. Warner on 11/7/2017. (eat)
IN THE UNITED STATES DISTRICT COURT, DISTRICT OF UTAH
AND ORDER REGARDING
PLAINTIFF’S SHORT FORM
Case No. 2:17-cv-00043-DAK-PMW
District Judge Dale A. Kimball
Chief Magistrate Judge Paul M. Warner
District Judge Dale A. Kimball referred this case to Chief Magistrate Judge Paul M.
Warner pursuant to 28 U.S.C. § 636(b)(1)(A). 1 Before the court are Plaintiff’s Short Form
Discovery Motion to Compel Defendant to Produce Recorded Statement He Gave to His Auto
Insurer Six Days After the Accident (the “Motion to Compel Recording”) 2 and Plaintiff’s Short
Form Discovery Motion to Compel Deposition of Dean Moncur (the “Motion to Compel
Deposition”). 3 Having reviewed the parties’ briefs and the relevant law, the court renders the
following Memorandum Decision and Order. 4
See docket no. 15.
See docket no. 14.
See docket no. 19.
Pursuant to civil rule DUCiv R 7-1 and DUCivR 37-1, the court elects to determine the present
motion on the basis of the written memoranda and finds that oral argument would not be helpful
Plaintiff filed a lawsuit against Defendant on December 12, 2016. 5 The complaint alleges
that the automobile Defendant was driving struck Plaintiff while he was riding a bicycle. 6
In Plaintiff’s request for production (“RFP”) No. 4, Plaintiff requested that Defendant
“[p]roduce any written or recorded statements of any individual who witnessed any part of the
incident and a privilege log for any such statement withheld under a claim of privilege.” 7
Defendant responded, “None.” 8 During his deposition, Defendant testified that he had given a
recorded statement to his insurer. 9 Although he maintained his position that the recorded
statement was not responsive to RFP No. 4, Defendant subsequently updated his privilege log to
include the recording and claimed the work-product privilege. 10
The Motion to Compel Recording seeks an order compelling Defendant to produce this
recorded statement. 11 Defendant argues that the recorded statement is privileged as work-product
obtained in anticipation of litigation. 12 The Motion to Compel Deposition seeks, in the
See docket no. 2. The lawsuit was originally filed in the Third Judicial District Court in and for
Salt Lake County, State of Utah. The action was removed to the United States District Court for
the District of Utah, based on the diversity of the parties.
See docket no. 2-1 at 4.
Docket no. 14, at 11.
See docket no. 14 at 2.
See docket no. 18-3, at 5.
See docket no. 14.
See docket no. 18 at 2.
alternative, to depose Dean Moncur, Defendant’s insurance adjuster, regarding Defendant’s claim
that the recorded statement is work-product. 13 Plaintiff avers that if the Motion to Compel
Recording is denied, the Motion to Compel Deposition is moot.14
Pursuant to Rule 26, parties may discover “any nonprivileged matter that is relevant to
any party’s claim or defense.” Fed. R. Civ. P. 26(b)(1). “[D]ocuments and tangible things that are
prepared in anticipation of litigation or for trial by another party or its representative (including
the other party’s . . . insurer . . .)” are not ordinarily discoverable. Fed. R. Civ. P. 26(b)(3)(A).
“But . . . those materials may be discovered if . . . the party shows that it has substantial need for
the materials to prepare its case and cannot, without undue hardship, obtain their substantial
equivalent by other means.” Fed R. Civ. P. 26(b)(3)(A)(ii).
The court agrees with Defendant that the statement provided to Defendant’s insurer was
obtained in anticipation of litigation, and is therefore privileged. In addition, the court finds that
Plaintiff has not established, or even attempted to establish, the substantial need exception set
forth in Rule 26(b)(3)(A)(ii). The court also agrees with Defendant that the privilege was not
waived by the failure to identify Defendant’s recorded statement and claim work-product
privilege in response to RFP No. 4. RFP No. 4 requested the statements of witnesses to the
incident, not parties thereto. Moreover, Defendant subsequently updated its privilege log,
claiming the work-product privilege for the Defendant’s recorded statement.
See docket no. 19.
See id. at 2.
For the foregoing reasons, the court hereby DENIES the Motion to Compel Recording.
Accordingly, the Motion to Compel Deposition is hereby rendered MOOT.
IT IS SO ORDERED.
DATED this 7th day of November, 2017.
BY THE COURT:
PAUL M. WARNER
Chief United States Magistrate Judge
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